Saturday, July 9, 2016

The Legal and Financial Reasons Why Police Stop and Shoot People like Philando Castile

There are many reasons why police stop and shoot people like Philando Castile. And it is not so much about good cop versus bad cop or individual racism. One can point to individual, institutional, or societal racism. There is racial and urban discrimination and poverty that was forcefully described back in 1968 by the Kerner Commission and which as a country we have done little to address nearly 50 years later. There is the flooding of guns onto the streets of America (thanks to the NRA and a weak-spine Congress which is afraid of them) which puts police on alert whenever they stop someone with conceal and carry. There is a 50 year legacy of politicians exploiting fear of crime and race including Nixon running on law and order, Reagan’s war on drugs, and Clinton’s 100,000 cops. There was the criminology theory of broken windows which said that the way to combat serious crime was to go after the small stuff first (such as broken tail lights) before it escalates. And then 9-11 gave new legitimacy to racial profiling. They were all part of a massive push to get tough on crime.But there are two other factors relevant to understanding why police stop and shoot people such as Philando Castle. The first is that the Supreme Court has empowered this behavior. Second, it is the rise of for-profit policing.
Begin first with the Supreme Court. There are two lines of Supreme Court precedent that empower the police to stop and shoot people. The first line goes back to Terry v. Ohio. In that 1968 case the Supreme Court upheld as constitutional a police officer who stopped and frisked several Black men whom he observed walking back and forth in front on a store. He had a hunch they were casing the place. He stopped and frisked them. The Court said that such a stop did not violate the Fourth Amendment and it did not require the police to have probable cause to search. Instead, all the officer needed was reasonable suspicion based on “"specific and articulable facts" to stop and do a quick search for weapons.Terry gave broad discretion to police to stop individuals, with articulable suspicion often times being no more than violation of minor driving offenses. Broken tail lights became the pretext to stop or search someone a police officer wanted to stop but otherwise lacked real probable cause to detain and search. Terry was further expanded in other cases where in Whren v United States (1996) the Supreme Court said that any traffic violation by a police officer was a legitimate basis to stop someone. And earlier in 1977 in Pennsylvania v. Mimms the Court said that there was no constitutional violation when police stop someone in a car for a routine traffic violation and to require them to submit to a pat down. These three cased among others give police broad discretion and ability to stop individuals and search them. Critics have correctly argued that these cases legitimize racial profiling by making it easy for police to justify any stop.A second line of cases goes back to the 1985 Tennessee v. Garner decision which gave significant authority to the police to use deadly force. In Tennessee v. Garner the Supreme Court ruled that the use of deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others. In Graham v. Connor the Supreme Court created an even softer standard for the use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight. To show that the police used excessive force one thus had to show that police officers in a particular cases were incorrect in their reasonable belief that a person posed an immediate physical threat.Excessive use of force cases are hard to win. The law simply favors the police here and with other criminal and state tort liability issues for the misuse of force. Moreover, public fears of crime complicate matters. So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.The point is that the law on use of force–including deadly force–has arguably so tipped in favor of the police that it is almost impossible to win a case against them, as can be seen in the recent Baltimore trials against officers accused of killing Freddie Gray.If the law were not enough in terms of empowering the police to stop and shoot then the rise of for-profit policing had given an economic incentive to do that. Specifically, again over the last 25 or more years the courts have sanctioned civil forfeiture laws which allow the police to confiscate and sell assets of those convicted of crimes. In addition, many cities, such as in Ferguson, Missouri as we learned last year, heavily depend on the revenue generated by routine traffic stops and fines to pay for cities services, including police salaries. In Minnesota, traffic fines are a part of general revenue that the state and many cities often depend upon as sources of revenue. Simply put, the more people whom you stop and ticket the more money you generate for a state or local government.So why do police stop and shoot people like Philando Castile? The law allows them to do both, and there are economic incentives that also encourage this behavior. Yes this behavior is symptomatic of broader racial and class issues that must be addressed. But a good public policy start could begin with taking the financial incentive out of this. In addition, while it was Supreme Court doctrine that gave the legal justification to these stop and search policies, nothing prevents state and local governments or police agencies from implementing more restrictive laws or procedures regarding stops, searches, and uses of force, including adopting better rules regarding police criminal and civil liability.

Note: For six years at Hamline I taught classes in its Criminal Justice program, including a course that covered police criminal and civil liability.

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.